Scott v. United States

Appeals from the Superior Court of the District of Columbia (FEL362-04; FEL363-04) (Hon. Wendell P. Gardner, Jr., Trial Judge).

The opinion of the court was delivered by: Belson, Senior Judge

Argued February 25, 2009

Before GLICKMAN and KRAMER, Associate Judges, and BELSON, Senior Judge.

Lloyd Patterson and Bryan Scott appeal their convictions arising out of an alleged assault. Both Patterson and Scott were convicted of assault with a dangerous weapon ("ADW");*fn1 possession of a firearm during a crime of violence ("PFCV");*fn2 carrying a pistol without a license ("CPWL");*fn3 possession of an unregistered firearm ("UF");*fn4 and unlawful possession of ammunition ("UA").*fn5 Patterson only was also convicted of a second ADW; assaulting, resisting, or interfering with a police officer with a dangerous weapon ("APOWA");*fn6 and a second count of PFCV for the separate APOWA. Patterson argues that there was insufficient evidence to support his convictions for the assault against the police officer. Scott argues that the trial court committed error of constitutional dimension in prohibiting the admission of cellular telephone records that supported the only defense theory he attempted to raise. We affirm Patterson's convictions, but vacate Scott's conviction for ADW and the related PFCV conviction, and remand those charges for further proceedings.

FACTUAL SUMMARY

At approximately 1:00 a.m. on January 16, 2004, Barry Tyson was shot in the back near the entrance of an apartment building located at 4321 3rd Street, in Southeast Washington, D.C. Tyson testified that two men wearing masks walked past him as he waited for a taxi in front of the building. The men then returned and accosted him. The taller of the pair, wearing a grey sweatshirt, pulled a pistol and shot Tyson in his back as he fled into the building. The shooter was later identified as Lloyd Patterson.

Two undercover Metropolitan Police Department ("MPD") officers happened to witness the shooting. Officers Stephenson and Wallace were in the area in street clothes, in an unmarked car, conducting undercover operations against narcotics traffickers.

Officer Stephenson testified that he saw three men take part, rather than two. The tallest man was Patterson, and one of the shorter men, wearing a dark outfit, was Bryan Scott. The third man was wearing a white windbreaker. Stephenson testified that as he was about to exit the vehicle, he saw Patterson fire a weapon as Tyson ran inside the building. Stephenson also observed Scott with a weapon in his hand, but was unsure whether he fired any shots. After the shots were fired, according to Stephenson, the trio fled from the building to the street. The unidentified man got in a car and drove away, while Patterson and Scott fled on foot.

Officer Wallace gave a slightly different account of the shooting. She saw only two men approach Tyson. Both men pulled weapons on Tyson and began shooting. Immediately after the shooting, both men fled on foot. As they ran in front of the unmarked police vehicle, Wallace saw their faces and was able to broadcast a lookout for the pair. Wallace later identified both Patterson and Scott in court.

Scott and Patterson ran into the street directly in front of the unmarked police car occupied by Stephenson and Wallace. Stephenson saw Patterson point his weapon at the officers. Stephenson then slammed on the brakes of the slowly moving vehicle while he and Wallace ducked down. As the two men ran away, Stephenson exited the vehicle and repeatedly shouted, "Drop the gun, police"! Wallace testified that Stephenson yelled, "Stop, police"! to the men, and she yelled, "Police! Stop! Put your hands up"! The two men fled in between some nearby buildings. As Stephenson exited the vehicle, Patterson again turned his pistol on the officer. Stephenson fired at Patterson, but missed.

Officer Stephenson pursued Patterson and Scott into an alley. As he gave chase, he observed Patterson discard his pistol. He also observed Scott tuck something into his waistband. After turning the corner of a building, Stephenson encountered Patterson and Scott, who had been apprehended by uniformed MPD officers in response to Wallace's radio call. Both pursuing officers identified the two men as the persons who had assaulted Tyson in front of the apartment building.

Patterson directed police to his discarded weapon, a black .45 caliber pistol, which crime scene technicians later determined was fired several times around the front of the apartment building. Another weapon, a silver .38 caliber revolver, thought to be Scott's, was also recovered by police in some nearby bushes. Crime scene technicians could not determine whether Scott's revolver had been fired. Neither of the weapons had adequate fingerprint markings to be compared with the known matches for Patterson and Scott in the MPD's fingerprint database. MPD officers also took a cellular telephone from Scott.

At trial, Scott's defense was that he was a bystander at the shooting, rather than a participant. He called as a witness Kimberly Barnes, a family friend whose son was a friend of Scott. Scott's claim of constitutional error arises out of her testimony. Ms. Barnes testified that she made six telephone calls from her home telephone to Scott's cellular telephone just prior to, during, and after the assault on Tyson. Ms. Barnes testified she made those calls because she was attempting to locate her son. In the first call, just after midnight, Ms. Barnes testified that Scott sounded normal and they spoke briefly. In the second call, Scott sounded fine, but then he exclaimed that someone was shooting. Ms. Barnes testified she heard noises like firecrackers in the background before the telephone went dead. When Ms. Barnes called Scott again, he answered, but was out of breath and said he would return her call, but the call again ended because of a lost signal. Another call was placed from Ms. Barnes to Scott, with the same conversation and the same result. Ms. Barnes testified that she placed two more calls to Scott, but did not reach him.

The government attacked Ms. Barnes's credibility by offering evidence of a large number of past convictions for various crimes of dishonesty. At the time of trial, Ms. Barnes was serving an eighteen-month sentence at the Prince George's County Detention Center for theft. By way of cross-examination, the jury learned that Ms. Barnes had five prior convictions for theft, three convictions for failure to appear, two convictions for uttering or passing false documents, and single convictions for concealment of ...

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